Rockaway Valley Regional Sewerage Authority v. Gorsuch

No. 81-2721 (D.N.J. September 11, 1981)

The district court denies plaintiff's application for preliminary relief restraining defendants from issuing federal construction grant awards to other New Jersey sewage treatment projects which would reduce the available share of such funds to less than $44 million. Plaintiff seeks a $44 million construction grant out of fiscal year (FY) 1981 funds, which is conditioned upon state certification that plaintiff's facility is entitled to priority for FY 1981, for completion of a wastewater treatment facility. The court denies preliminary relief because (1) plaintiff has not demonstrated a likelihood of success on the merits, (2) the judicial branch cannot order the appropriation of additional funds for federal grants, (3) granting plaintiff's application would result in the disruption of other projects and therefors is not in the public interest, and (4) the denial of preliminary relief to plaintiff by a New Jersey state court is entitled to great deference.

[The pleadings in this case are summarized at ELR PEND. LIT. 65715, 65720; a subsequent opinion is reported at 11 ELR 21101 — Ed.]

Counsel for Plaintiff
Joseph J. Maraziti Jr.
Maraziti, Kalish & Gregory
65 Madison Ave., Morristown NJ 07960
(201) 538-1221

Counsel for Defendants
Nancy Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3767

James R. Zazzali, Attorney General; Paul H. Schneider
36 W. State St., Trenton NJ 08625
(201) 929-8662

[11 ELR 21101]

Biunno, J.:

Memorandum

This suit, brought by the Authority (RVRSA), names federal and state officials involved in the administration of the Clean Water Act, 33 U.S.C. § 1251, et seq.

Its ultimate object is to establish that RVRSA is entitled, out of federal funds available through September 30, 1981 (FY-1981), to some $44 million for completion of a wastewater treatment plant with a capacity of some 12 million gallons a day.

Under the Clean Water Act, provision is made for the allocation of federal grants to the State on a 75%/25% shared basis, see 33 U.S.C. § 1282(a)(1). However, before approving a grant, the federal official, the administrator of the Environmental Protection Agency (EPA), is to determine that the works have been certified by the State agency (here, the Department of Environmental Protection or, "DEP"), "as entitled to priority over such other works in the State in accordance with any applicable State plan . . .", 33 U.S.C. § 1284(a)(3).

The complaint alleges that the State has not certified RVRSA's works as entitled to priority for FY-1981, and so it cannot have a grant approved by EPA because State certification is a precondition. The contention is that the works are entitled to priority and that the court should so determine.

Pending trial, RVRSA asks that DEP be restrained from certifying, and EPA be restrained from issuing grant awards for other works that would reduce the available funds to less than $44 million (the amount sought by RVRSA).

An order to show cause was issued, returnable September 10, 1981, why the preliminary relief sought should not be provided. From a review of the papers filed and the oral argument presented, the court concludes that the relief sought must be denied.

It is most unlikely that RVRSA will be successful at the end. One of the reasons is that once September 30, 1981 goes by, the fiscal year closes and a new priority list will need to be generated for the certifications and grant awards made thereafter. Allocation of available federal funding to other entities and works during FY-1981 will foreclose any redistribution thereafter, especially since competing entities are not parties here.

If the supply of funds for federal grants be less than the demand, and if RVRSA's standing on the priority list is below that level, the judicary cannot order the appropriation of additional funds.

Notice was given, at the court's direction, to all other entities involved, and many filed papers or appeared. From the presentations made, it is clear that to grant RVRSA's application would be to shut the door in the face of awards for the works of other entities. The ensuing disruption of other projects cannot be in the public interest.

Also, the issue has already been raised in a proceeding pending in Superior Court of New Jersey since 1968, and while temporary restraints were issued on May 22, 1981, against issuance of certifications, they were dissolved effective June 26, 1981 by order of July 23, 1981. This action by a court which has been supervising the matter since 1968 is a determination of considerable persuasion here, and is entitled to great deference.

All other matters, such as the jurisdiction of this court, the question of abstention, the disposition on written or oral motions for leave to intervene, and the like, are reserved and will be dealt with in a separate ruling.

Submit order accordingly.